Brautigam v. Damon et al

Filing 45

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 19 Report and Recommendation in all respects. The Court DENIES Defendant Damon's Motion to Dismiss 4 as moot, DENIES Defendant Damon's Motion to Dismiss First Amended Complaint [1 0], and GRANTS the Deters Defendants' Motion to Dismiss 14 . This case shall proceed as to Defendant Damon before Magistrate Judge Karen Litkovitz, to whom the case has been referred. Signed by Judge S Arthur Spiegel on 8/1/2013. (km1) (Additional attachment(s) added on 8/1/2013: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL G. BRAUTIGAM,
Plaintiff,
vs.
GEOFFREY P. DAMON, et al.,
Defendants.

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NO. 1:11-CV-00551

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation (doc. 19) and Plaintiff’s Objection (doc.
21).

For the reasons indicated herein, the Court ADOPTS and

AFFIRMS The Magistrate Judge’s Report and Recommendation in all
respects and therefore DENIES Defendant Damon’s Motion to Dismiss
as moot, DENIES Defendant Damon’s Motion to Dismiss Plaintiff’s
First Amended Complaint, and GRANTS the Deters Defendants’ Motion
to Dismiss.
I.

Background
This matter had been stayed pending Defendant Geoffrey P.

Damon’s bankruptcy case in the United States Bankruptcy Court for
the Eastern District of Kentucky. Defendant Damon has filed notice
of termination of automatic stay such that this case may now
proceed (doc. 29).
This

case

involves

a

dispute

between

Plaintiff

and

lawyers he hired to prosecute two lawsuits, one involving legal

malpractice, and the second involving federal civil rights claims
against a local judge (doc. 19).

Defendant Damon filed two

motions to dismiss (docs. 4,10), and the Deters Defendants filed
such a motion as well (doc. 14).

The Magistrate Judge thoroughly

reviewed the record and recommended the Court deny both of Damon’s
motions and grant the Deters Defendants’ motion (doc. 19).
Plaintiff filed an objection (doc. 21), such that this matter is
ripe for the Court’s review.
II.

The Magistrate Judge’s Report and Recommendation
A.

Defendant Damon’s First Motion to Dismiss

Defendant

Damon’s

first

Motion

to

Dismiss

(doc.

4)

attacked the Complaint for lack of diversity jurisdiction, as the
Complaint listed Joseph Butkovich as a defendant, and he, like
Plaintiff is a citizen of Ohio.

Plaintiff filed an Amended

Complaint that no longer included Butkovich as a Defendant.
Because the Amended Complaint cured the jurisdictional issues with
regard to diversity, the Magistrate Judge properly recommended the
Court deny Defendant Damon’s first Motion to Dismiss as moot.
B.

Defendant Damon’s Second Motion to Dismiss

Defendant

Damon’s

Plaintiff’s

Complaint

abstention,

and

based

second,

Second
two

Motion

on

Plaintiff’s

to

theories:
failure

Butkovich as an indispensable party (doc. 10).

Dismiss

attacks

first,

Younger

to

join

Joseph

Younger v. Harris,

401 U.S. 37 (1971) prohibits federal courts from presiding over

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matters pending before a state court.

The Sixth Circuit has held

that a federal court must abstain where 1) state proceedings are
pending, 2) the state proceedings involve an important state
interest, and 3) the state proceedings will afford the plaintiff an
adequate opportunity to raise his constitutional claims.

Kelm v.

Hyatt, 44 F.3d 415, 419 (6th Cir. 1995). The Magistrate Judge found
the Younger doctrine inapplicable because there was no evidence of
a state court proceeding, and in any event Plaintiff’s claims arise
out of tort and contract law, not a constitutional theory.

The

Magistrate Judge thus recommended the Court deny Defendant’s motion
to dismiss with regard to Younger abstention.
The Magistrate Judge further found no evidence that
Butkovich is a necessary party to this lawsuit under Fed. R. Civ.
P. 19(a).

The Magistrate Judge reported that Defendant’s argument

with regard to Butkovich is that he has knowledge of the events
alleged in the Complaint, and that Butkovich could be deposed or
even called as a witness so as to provide discoverable information.
Moreover, because Plaintiffs claims sound primarily in tort, the
Magistrate Judge found Butkovich is no more than a potential joint
tortfeasor.

Joint

tortfeasors

are

indispensable parties under Rule 19(a).
276 F.3d 197 at 204 (6th Cir. 2001).

neither

necessary

or

PainWebber Inc. v. Cohen,

For all of these reasons the

Magistrate Judge properly concluded Plaintiff has not failed to
join an indispensable party, and Defendant Damon’s motion to
dismiss based on such theory should be denied.
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C.

The Deters Defendants’ Motion to Dismiss

The Deters’ Defendants seek to dismiss the Complaint
against them for failure to state a claim.

The Magistrate Judge

found that Plaintiff has failed to allege facts sufficient to state
a claim against the Deters Defendants for breach of fiduciary duty.
The Magistrate Judge found that Plaintiff had no attorney-client
relationship with the Deters defendants because his relationship
with

Defendant

Damon

ended

in

August

2010,

Defendants hired Damon in September 2010.
attorney-client

relationship

and

and

the

Deters

Because there was no

therefore

no

fiduciary

duty

Plaintiff’s Complaint failed to state a claim for breach of
fiduciary duty against the Deters defendants.
The Magistrate Judge similarly found Plaintiff failed to
allege facts sufficient to state a claim for legal malpractice.
As

there

was

never

an

attorney-client

relationship

between

Plaintiff and the Deters defendants, there is no plausible claim
for legal malpractice.
The Magistrate Judge next found Plaintiff failed to
allege facts sufficient to state a claim against the Deters
defendants for unjust enrichment.

The Magistrate Judge found that

at no point does Plaintiff allege facts demonstrating that the
conferred a benefit upon the Deters defendants, that the Deters
defendants

were

aware

of

such

benefit,

defendants retained the benefit unjustly.

or

that

the

Deters

The Court agrees.

Finally, the Magistrate Judge found Plaintiff has failed
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to allege facts sufficient to state a claim against the Deters
defendants for negligence.

The Magistrate Judge found Plaintiff

has failed to allege sufficient facts to establish that Deters’ act
of hiring Damon was the proximate cause of Plaintiff’s injuries.
Again, as the Deters defendants did not hire Damon until a month
after Plaintiff terminated his professional relationship with
Damon, the Magistrate Judge correctly reasoned that it is a
practical impossibility that the act of hiring Damon was the
proximate cause of Plaintiff’s injuries.
III.

Discussion
Plaintiff objected pro se to the Magistrate Judge’s

Report and Recommendation, requesting sanctions against Defendant
Damon for “filing a frivolous motion to dismiss,” and requesting a
case management conference (doc. 21).

The core of Plaintiff’s

objection, however, is as to the Deters Defendants.

Plaintiff

contends Defendant Damon was not granted leave to withdraw from
representing Plaintiff by the state court until November 9, 2010,
such that his claims against the Deters Defendants should be
preserved. (doc. 21).
Having reviewed this matter, the Court does not find
Plaintiff’s objection persuasive.

Plaintiff’s Complaint simply

fails to allege adequate facts against the Deters defendants to
show they had any sort of relationship with Plaintiff or harmed him
in any way.

The Court finds the Magistrate Judge’s Report and

Recommendation correct in its conclusion that Defendant Damon’s
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motions to dismiss should be denied, while the Deters Defendants’
motion should be granted.
Proper Notice has been given to the parties under 28
U.S.C. § 636(b)(1)(C), including notice that the parties would
waive further appeal if they failed to file objections to the
Report and Recommendation in a timely manner.
Walters, 638 F.2d 947 (6th Cir. 1981).

United States v.

As of the date of this

Order, no objections have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C.
§

636,

the

Court

finds

the

Magistrate

Judge’s

Report

and

Recommendation thorough, well-reasoned, and correct. Accordingly,
the Court hereby ADOPTS and AFFIRMS the Magistrate Judge’s Report
and Recommendation (doc. 19) in all respects, DENIES Defendant
Damon’s Motion to Dismiss (doc. 4) as moot, DENIES Defendant
Damon’s Motion to Dismiss First Amended Complaint (doc. 10), and
GRANTS the Deters Defendants’ Motion to Dismiss (doc. 14).

This

case shall proceed as to Defendant Damon before Magistrate Judge
Karen Litkovitz, to whom the case has been referred.
SO ORDERED.
DATED: August 1, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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